VICTORY! DHS Issues Written Guidance to Stop Deportations of the Spouses and Partners of Gay and Lesbian Americans

We learned today that on October 5, the Principal Legal Advisor to the United States Immigration and Customs Enforcement agency issued long-awaited written guidelines (attached below) clarifying that prosecutorial discretion guidelines issued by the agency in June 2011 to protect families from being separated by deportations in low-priority cases, would, in fact, include same-sex couples. The written guidance began to circulate today and was first reported on by the media this evening.

“For the first time ever, the federal government has put in writing a policy to protect gay and lesbian couples who are threatened with deportation by explicitly including same-sex couples in the definition of “family relationships,” putting it beyond doubt that gay and lesbian couples are eligible for favorable acts of discretion when subject to removal.

Since the summer of 2010, a group of determined gay and lesbian binational couples have organized and fought for this policy as a central part of our “Stop the Deportations, Separations and Exile” campaign. This is a tremendous moment for our community, and an especially important illustration of how those affected by our nation’s discriminatory immigration laws have, through their own acts of courage, made a change possible. This is trickle-up, grass roots activism at its best.

This guidance is a big win for all lesbian and gay couples seeking to end the catastrophic consequences of the Defense of Marriage Act.

We are grateful that the Obama administration has finally issued written guidelines that bi-national same-sex couples can invoke when fighting deportations in court. Our law firm, Masliah & Soloway, as part of this pro bono campaign, continues to represent numerous same-sex couples in immigration courts around the country who are facing imminent deportation, and, thanks to this document, we can help many more couples from being torn apart.

Specifically, this guidance helps clarify that foreign-national spouses and partners of gay and lesbian Americans are now protected from deportation. This new guidance will help bring an end to the confusion caused by the contradictory signals the administration had been sending: that DOMA precluded the recognition or even the acknowledgement of married lesbian and gay bi-national couples who were facing deportation, and the fact that these couples are same-sex partners who constitute families that should not be broken apart.

The foundation of this policy is an inclusive definition of family and a statement of principle that LGBT families deserve protection. It is evidence that the Obama administration is able to develop innovative, interim remedies to protect gay and lesbian Americans who fear being torn apart from the person that they love. This policy is a great start. We now must continue to work with the Department of Homeland Security to open up “humanitarian parole” to bring all the gay and lesbian Americans and their partners back from exile and reunite all same-sex binational couples. The administration should also provide immediate relief and protection for those gay and lesbian binational couples in the United States, by accepting the green card petitions and putting their adjudication on hold until the Supreme Court has ruled on the constitutionality of DOMA.

3 comments

My heart aches for all of us in this struggle to be together with the person we love, where we want to be. I know how good it feels to be together, and how rotten it feels to be separated. My wife and I have made big sacrifices to stay together. I took early retirement, for permanent reduced income, and we were forced to become “love exiles” outside the U.S. together. We returned and took another big step. We married and forced my government to answer my request for a marriage-based green card. In doing so, my wife had to overstay her visa. We know this technical violation is worth the risk, because we are fighting for full equality. We are not facing deportation, but we know those who are make it possible for us to fight for this green card. We have had our interview and we have seen progress. We are now fighting to have our case held in abeyance. So we appreciate this DHS ruling and will continue to fight to move this issue forward. We are optimistic that we will continue to make positive change happen. We will keep up this fight until we are all safely here together and any couple can, at their choosing, safely travel and return to the U.S. together. We took a risk to fight for a green card, and to fight for green cards for all binational couples. Like us, those in deportation proceedings have done this with the goal of full equality in mind, nothing less. Though these written guidelines are not the permanent solution to stop all our families from being torn apart, it is a very important step in the process. Please keep your eyes on the goal, the prize. Keep sharing your stories. Keep working for change. We will get there. Thanks to DHS for hearing us and responding.

[...] Security (DHS) to stop deporting spouses and partners of gay and lesbian Americans. DHS finally put the policy in writing in October. It was a narrow victory that provided the possibility of protection only in the [...]

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This is a pro-bono project of the law firm of Masliah & Soloway, PC. Posts on this website are offered for informational purposes only and do not constitute legal advice. The law firm of Masliah & Soloway, PC has offices in New York and Los Angeles. Our practice is limited to U.S. Immigration & Nationality Law.